August 30, 2012

A Washington trial judge's decision to replace a juror in a murder trial shortly before deliberations was potentially harmful enough to the defendant to warrant a new trial, the District of Columbia Court of Appeals ruled in an
opinion (PDF) released today.

The juror, called "Juror 223," had been acting erratically during Frank Leon Johnson's trial in District of Columbia Superior Court, according to filings, and Judge Herbert Dixon replaced her in light of the government's concerns about her behavior. Johnson's lawyer appealed, arguing that Dixon failed to give a reason for removing Juror 223 that was in line with the law and that, given the questions she asked of the government's only eyewitness, she might have changed the outcome of the case had she stayed.

A three-judge appellate panel agreed with Johnson, finding that Dixon's decision didn’t square with the rules governing juror replacement and that the government's case against Johnson wasn't so "overwhelming" that Juror 223 would have been out of line to push for acquittal.

Johnson was convicted of first degree murder and a host of other charges in connection with the April 2003 fatal shooting of Reginald Brighthart. The government presented one eyewitness, James Robertston, who said that he restrained Brighthart while Johnson shot him in the head. Johnson's defense at trial was that Robertson was responsible. Juror 223, whose identity wasn't revealed in court filings, submitted a host of questions for Robertson.

After observing Juror 223 rocking back and forth and in light of her request to see a mental health professional about her emotional reactions to the case, prosecutors repeatedly expressed concerns to Dixon about her ability to serve. One of their biggest concerns, according to filings, was that she indicated that she may have missed some testimony. Following closing arguments, Dixon ruled that while he didn't find any misconduct, he was going to exercise his discretion and replace Juror 223 with an alternate.

Judge Anna Blackburne-Rigsby, writing for the three-judge panel, found that Dixon erred in replacing Juror 223 without meeting the standard of finding that she was "unable" or "disqualified" to serve. She wrote that the court couldn't find that the error was harmless because there was no way to know what would have happened had Juror 223 stayed.

"The government's evidence, though arguably sufficient to support a jury verdict of guilty, is not overwhelming," Blackburne-Rigsby wrote, noting that Robertson – already an admitted perjurer – was the only eyewitness, that other witnesses presented inconsistent testimony and that prosecutors didn't have the murder weapon, fingerprints or DNA evidence.

Johnson was represented by Sloan S.J. Johnston of the D.C. Public Defender Service. A PDS representative could not immediately be reached. A spokesman for the U.S. attorney's office, Matthew Jones, declined to comment. Assistant U.S. Attorney Amanda Winchester argued for the government.